-
the risk factors that increase the danger posed by coercive,
controlling, violent and/or abusive persons, including jealousy regarding real
or imagined friendships or lovers, anxiety about increasing independence or
separation originating from the accused, and formal or informal reinforcement
of entitlement emanating from family members, the community, or the legal
system, among others;
-
the nature, frequency, and degree of coercive control,
threats, violence, and or abuse from any source, experienced by the accused or
the person protected;
-
the nature, frequency, and degree of coercive control,
threats, violence, and or abuse inflicted by the aggressor against the accused
or other persons;
-
the age, health, physical condition, sex, economic status,
psychological state, and race of the accused and the aggressor;
-
any efforts made by the accused to resist, expose, or
minimize the aggressor’s coercive control, threats, violence and/or abuse,
and the results of such efforts, as well as the accused’s experience
regarding the efforts of others to seek intervention or assistance;
-
the nature of the harm anticipated or threatened, including
whether it was avoidable with some degree of certainty, and whether an
immediate response was needed.
| Recommendation #
18: |
Enact a statutory list of
considerations going to “reasonableness” in cases where the accused
or the person protected was subjected to a pattern of coercive control,
violence, threats and or abuse. This list must include both systemic issues, as
highlighted in Malott, and consideration of the particular features of the
accused’s experience, as set out above. |
9. Sober Person
The Justice paper asks whether the “reasonableness”
standard ought to employ the standard of the sober person. This was the
interpretation used by Judge Ratushny in the Self-Defence Review for evaluating
women’s claims to self-defence. CAEFS agrees that the reasonable person
should be viewed as a sober person. This definition fits with s. 33.1 of the
Criminal Code regarding the denial of the defence of extreme intoxication alone
or in combination with alleged “mistake of fact” related to consent
to sexual assault (s. 273.2). CAEFS takes this position even though there is a
strong relationship between the experience of abuse and violence and subsequent
substance abuse, and knowing that this limit could also negatively affect women
arguing self-defence.
|